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Obama Administration Undermines Rule of Law...Again

In yet another move calculated to fulfill the President's backdoor amnesty agenda, the Obama Administration issued a new policy memorandum Friday, this time granting illegal aliens who are immediate relatives of active and veteran U.S. military members the ability to obtain a green card and eventual citizenship. (USA Today, Nov. 15, 2013)

President Obama is creating this path to citizenship by granting these illegal alien relatives "parole in place." However, rather than being based in statute, the concept of "parole in place" is a politically-motivated distortion of U.S. immigration law. There is no statutory or regulatory authority for parole in place; it predicated on yet another memorandum, this time by the former General Counsel of the Immigration and Naturalization Service under the Clinton Administration.

While our immigration laws do provide the Executive branch with discretion to grant aliens what is commonly referred to as "humanitarian parole," this is only to allow aliens outside of the country into the U.S. on a temporary and case-by-case basis under certain circumstances. Specifically, the provision of the Immigration and Nationality Act governing parole provides:

The Attorney General may...in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.... (Section 212(d)(5)(A))(emphasis added).

Accordingly, the plain language of the statute requires not only that the alien being paroled be outside of the U.S., but that such aliens be considered for such temporary relief on an individual basis. This is further borne out by the regulations issued to implement the statute on humanitarian parole, which reference only "arriving aliens." Nowhere do our laws grant the Executive Branch authority to grant parole for a broad class of illegal aliens already inside ofthe U.S. with the express intent of doing so just so they circumvent current law to obtain a green card. Nevertheless, the Department of Homeland Security is now directing its agencies to do exactly that.

Granting parole to an alien is significant, because it allows aliens to circumvent provisions in law that would normally bar their admission and puts them on a path to citizenship. In general, illegal aliens who cross the border unlawfully are inadmissible to the U.S. because they have not been lawfully admitted or paroled into the country. (See Immigration and Nationality Act § 212(a)(6)(A)) Thus, the Administration's latest memorandum offering blanket parole gets around this basis for inadmissibility. (See USCIS Memo, Nov. 15, 2013) Once the illegal alien relatives are approved for this "parole in place" status, they are considered admissible to the country and therefore eligible to obtain green cards and citizenship. (INA at § 245(a))

Justifying the Administration's latest backdoor amnesty, Department of Homeland Security spokesman Peter Boogaard said the change in law will "reduce the uncertainty our active duty and retired military personnel face because of the immigration status of their family members," Boogaard told reporters. (Fox News Latino¸ Nov. 16, 2013)

FAIR's president Dan Stein blasted the Administration for once again changing immigration law to achieve its agenda through executive fiat. "If the president wanted to exempt relatives of military personnel from deportation, he should have put a bill before Congress. Instead, he has once again chosen to bypass Congress and exercise broad powers not granted to him under the Constitution," said Stein. "The precedent the Obama Administration is setting is extraordinarily dangerous. If the President is allowed to violate the laws for one group of people, it will not take long before he starts expanding his powers to reach the entire illegal alien population."

Speaker Boehner Declares No Conference

House Speaker John Boehner (R-OH) finally declared last week that he had no intention of pushing the lower chamber into a conference committee with the mass senate amnesty bill. "The idea that we're going to take up a 1,300-page bill that no one had ever read, which is what the Senate did, is not going to happen in the House," Boehner said at a press conference. (Washington Post, Nov. 13, 2013) "Frankly, I'll make clear, we have no intention of ever going to conference on the Senate bill," he continued.

Boehner's leadership team echoed his commitment. A spokesman for Majority Leader Eric Cantor (R-VA) told Brietbart News, "The Leader agrees with the Speaker, and has said before, that a common sense, step-by-step approach is the best way to deal with immigration reform and the House has no intention of ever going to conference on the Senate bill." (Brietbart.com, Nov. 13, 2013) Shortly thereafter, a spokesman for Majority Whip Kevin McCarthy (R-CA) also told Brietbart News "Whip McCarthy agrees with the Speaker...The House will work its will and we will do so in a more thoughtful, deliberate, step-by-step approach to address our broken immigration system, focusing first on securing the border." (Brietbart.com, Nov. 13, 2013)

Nonetheless, Speaker Boehner did commit the House to taking up immigration reform legislation in the future, indicating the amnesty battle is far from over. I am "trying to find some way to get this thing done," he told amnesty supporters who approached him that morning before his press conference. (Politico, Nov. 13, 2013) "It's, uh, you know, not easy — not gonna be an easy path forward," he said. (Id.) "But I've made it clear since the day after the election that it's time to get this done." (Id.)

Speaker Boehner also told reporters that House Judiciary Chairman Bob Goodlatte (R-VA) — whose committee has jurisdiction over the immigration issue — was currently working on "principles" for the chamber to follow in pursuing immigration reform in the coming year. Chairman Goodlatte is working with "our members, and frankly across the aisle, developing a set of principles that will help guide us as we deal with this issue," said Boehner. (Roll Call, Nov. 13, 2013) "As we develop principles, we'll figure out how we move ahead," he said. (Id.)

The White House welcomed news of the pending principles. "I noted that the speaker said that he has instructed members of his team to devise principles on immigration reform, and I think that's a welcome step," said White House press secretary Jay Carney. (Washington Post, Nov. 13, 2013)

Chairman Goodlatte has already made clear his committee is working on amnesty legislation, including a DREAM Act and broad legalization bill. He told NPR host Kojo Nnamdi in September that there are "members of the House working on other bills related to the children brought here illegally by their parents, related to a legal status for people who are not lawfully here today, a larger group, related to reform of our refugee and asylum programs, and related other [non-agricultural] guest-worker programs." (See Kojo Nnamdi Show Transcript, Sept. 10, 2103) These additional bills have yet to be introduced.

Schumer: House Will Pass Immigration Bill, Possibly Before 2014

Gang of Eight leader Sen. Chuck Schumer (D-NY) remains confident that Congress will pass "comprehensive" immigration reform, even after Speaker John Boehner (R-OH) announced that the House will never conference with his 1,200 page amnesty bill passed by the Senate in June. "I still think it's possible this year," Schumer declared at the Washington Ideas Forum hosted by The Atlantic. (Washington Times, Nov. 14, 2013) "But if it's not, I think we have a real good chance to do it in the first half of next year.... If I had to bet money, we're going to have an immigration reform bill on the president's desk." (Id.)

Schumer claims Republicans need to address immigration in order to be successful in the 2014 elections. "They have to do something, and the Republican leadership in the House knows that – Speaker Boehner knows that," Schumer said. (Id.) "At the same time, they can't do it without Democrats," Schumer said, predicting that House GOP leadership will "come to its senses and realize that we have to fix our immigration system in a bipartisan way." (Id.) "We're going to get something done," Schumer proclaimed. (Capital, Nov. 14, 2013)

A top House Republican essentially confirmed Schumer's belief that the House will address immigration before next November's elections. "Between now and the [2014] election I think the House will take up immigration in a piece-by-piece approach," Rep. Greg Walden (R-OR), the chairman of the National Republican Congressional Committee, told reporters at a Christian Science Monitor breakfast. (Huffington Post, Nov. 15, 2013) "It's a matter of timing, in part because of everything else that hasn't been done yet with the whole government funding issue and all of that has eaten up a lot of time. So my guess is it will happen later next year," Walden said. (CQ Today, Nov. 15, 2013)

However, Walden reiterated that the House will only consider piecemeal bills rather than following the Senate's "comprehensive" approach. "The American people are skeptical of big, huge comprehensive bills," Walden said. (Id.) "And we are looking at real reform that's done a piece at a time, step by step, so that you can have it be transparent so that people can have a chance to actually understand each step of the way and how it's sequenced." (Id.)

17 Years Later, Still No Entry-Exit System

Last Wednesday, House Judiciary Committee members inquired about the lack of a U.S. biometric tracking system for foreign nationals at a hearing entitled, "Implementation of an Entry Exit System: Still Waiting After All These Years." In his opening statement, Committee Chairman Rep. Bob Goodlatte (R-VA) said, "the ability to track who arrives in and subsequently departs from the United States is a necessary first step for immigration reform." (Bloomberg Government Transcript, Nov. 14, 2013)

While the federal government has implemented a biometric entry system, it still has not – despite numerous laws requiring it – implemented a biometric exit system. Several Members of Congress expressed their concern that the Department of Homeland Security (DHS) has not followed the law. Representative Lamar Smith (R-TX) said, "It has been 17 years since the entry-exit system was first enacted in a 1996 immigration bill I introduced. We are long overdue." (Id.) The concern was echoed by Rep. Trey Gowdy (R-SC) who declared, "Despite Congress reiterating its mandate for an exit system over the past 17 years, DHS has failed to execute the law." (Id.) Rep. Bob Goodlatte (R-VA) added, "This administration and past administrations had plenty of time to get this done, yet they continue to make excuses as to why it cannot be completed." (Id.)

DHS Assistant Secretary for Policy David Heyman admitted that "we have yet to implement biometrics into the exit process" (Id.) Julie Myers Woods, former director of Immigration and Customs Enforcement (ICE) pointed out that DHS struggled with "cost restraints, capacity, and the technological limitations" but noted that those concerns may not be present today because of "biometrics are part of mainstream industry and security efforts." (Id.) In 2009, the results of two DHS air exit pilot programs demonstrated that technology had significantly advanced. (U.S. Visit Air Exit Pilots Evaluation Report, 2009) Former counsel to the 9/11 Commission Janice Kephart said that the success of those pilots showed "DHS established feasibility" of biometric exit. (Bloomberg Government Transcript, Nov. 14, 2013)

Representatives Zoe Lofgren (D-CA) and Jason Chaffetz (R-UT) inquired about the cost of implementing a biometric entry-exit system. Although Heyman noted that "the department concluded that implementation would require over $3 billion in investments" in 2008, other witnesses offered lower cost figures. (Id.) Janice Kephart's estimates were one-sixth of original estimates, because the advancement of technology and the rise of the biometric commercial industry have reduced costs six times lower. According to Kephart's calculations, first-year implementation would cost $400-600 million for a biometric entry-exit system at all air and sea ports. James Albers, senior vice president of biometric company MorphoTrust, agreed that "costs for implementation, integration, operations and maintenance are much lower than they were a few years ago." (Id.)

In addition to lower costs, Kephart testified that biometric entry-exit is feasible as well. She pointed out that biometric scanning takes only a few seconds today, instead of over a minute years ago. Albers indicated that over 70 international airports around the world currently have biometrically enabled systems and they do not impede legitimate trade. He also testified that biometric entry-exit could be implemented within two years.

Obama's Homeland Security Nominee Affirms Amnesty Support

Last Wednesday, the Senate Homeland Security and Governmental Affairs Committee held its hearing on the nomination of former Pentagon attorney Jeh Johnson to become the next Secretary of the Department of Homeland Security (DHS).

Though immigration was not the main focus, Johnson did use the hearing to express his support for amnesty. "Like President Obama, many in Congress, the business community and most of the American public, I support comprehensive common sense immigration reform. If reform is enacted into law I will work to prepare DHS to administer the changes in law and ensure that DHS has the staff, resources, and capability to do so," he said. (Bloomberg Government Transcript, Nov. 13, 2013)

Johnson also listed "immigration reform" as his seventh priority in a questionnaire given to him prior to the hearing. (NPR, Nov. 13, 2013) Underscoring the fact that roughly 40% of the agency's top posts are vacant, his top two priorities were filling leadership vacancies and improving agency morale. Counterterrorism came in third, though it was the number one stated priority of Johnson's predecessors. (AP, Nov. 13, 2013).

At the hearing, several committee members agreed with Johnson's top two priorities. In particular, committee chairman Tom Carper (D-DE) noted that 13 presidentially appointed positions at DHS are without a permanent replacement, "I describe this as executive branch Swiss cheese." Both Sens. Carper and Tom Coburn (R-OK), the committee's ranking member, also noted that morale is indeed a problem at DHS, ranking lowest among major federal agencies. (See U.S. News and World Report, Dec. 13, 2013)

However, Senator Coburn did criticize the written answers to Johnson's prehearing questionnaire for using identical language in 23 instances to several other Obama Administration nominees. (Brietbart News, Nov. 15, 2013)Coburn asked Johnson to correct the questionnaire , stating: "the shoddy work associated with that...does not serve the committee well" because the purpose of the questionnaire is "to get your thoughts, not a legislative assistant's thought at Homeland Security or somebody at OMB's thoughts."

Following the hearing, six GOP senators from the Senate Judiciary Committee sent a letter to Johnson requesting answers to additional questions, many of which focused on immigration. The letter stated: "we have all repeatedly expressed our strong disapproval of the refusal of this administration — and DHS in particular — to enforce our immigration laws, contradicting duly enacted federal law through administrative orders and internal memoranda... We hope you will commit to discontinuing these lawless policies if confirmed." (Read the letter here)

Whether and how soon Johnson will be confirmed by the Senate remains to be seen. Senator Lindsey Graham (R-SC) has vowed to block all of President Obama's nominees from being confirmed until the Administration makes the survivors of last year's terrorist attack on the U.S. Consulate in Benghazi available to Congress for questioning. (Washington Post, Nov. 10, 2013). Senator McCain (R-AZ) has also threatened to block Johnson's nomination. McCain explained to reporters after the hearing that he placed a hold on the nomination after Johnson "refused to tell me that he would give me the information necessary as to what is necessary to have 90 percent effective control of our border." (Politico, Nov. 13, 2013)

The Homeland Security Committee is expected to vote on Johnson's nomination today.

On Monday, the New Jersey Senate approved Senate Bill 2479 (S.2479) by a vote of 25-12 to provide illegal aliens taxpayer-funded in-state tuition rates and financial aid at all public colleges and universities. (The Associated Press, Nov. 18, 2013).

To qualify for in-state tuition under S.2479, an illegal alien must:

Have attended high school in New Jersey for three or more years;

Have graduated from a high school or received the equivalent of a high school diploma in New Jersey;

Register as an entering student or be enrolled in a college or university no earlier than the fall 2013-2014 semester; and

File an affidavit with the school stating that the student has filed an application to legalize his or her immigration status or will file an application as soon as he or she is eligible to do so.

The bill also requires student information obtained in the implementation of the law remain confidential.

An earlier version of the bill required illegal aliens to submit a request to the United States Citizenship and Immigration Services (USCIS) for consideration of the United States Department of Homeland Security's deferred action for childhood arrivals process. This provision was removed by the Senate Higher Education Committee back in June.

The bill now makes it way to the New Jersey Assembly, and if passed, will likely be signed by Governor Chris Christie. The Governor, who once opposed the federal DREAM Act and pledged to veto any similar bill in New Jersey, has flipped his position on in-state tuition rates and financial aid for illegal aliens. Last month, as the election approached, he assured pro-amnesty groups that he would "get it done in the lame duck." (The Washington Times, Oct. 13, 2013; The Huffington Post, Oct. 15, 2013).

Recently, FAIR wrote to Governor Christie urging him to oppose in-state tuition for illegal aliens because it burdens taxpayers who will be forced to pick up the bill, burdens universities and colleges who are experiencing severe budget shortages, denies a higher education to some citizens and legal residents who will have to compete with illegal aliens for limited admission slots, and denies equity and justice to foreign students lawfully present on student visas who are required to pay out-of-state tuition rates while their compatriots, who cheated the system, receive in-state tuition rates and financial aid. Governor Christie has yet to respond to FAIR's letter.